January 25, 2013

Damn, the Recess Appointment Decision is Right

I was all set to go into a swivet about the federal appeals court's decision against President Obama's recess appointments for the National Labor Relations Board (and, by implication, his appointment of Richard Cordray to run the Consumer Financial Protection Bureau). Would it be all right with the D.C. Court of Appeals if we had a functioning government? Apparently not. My outrage over the decision increased when I saw the esteemed judges misspelled the word "loath." If you're going to use a pretentious word like "loath," at least spell it right, for crying out loud. And I felt a migraine coming on as I read this passage, so powerfully reminiscent of Bill Clinton's famous Monicagate assertion, "It depends what the meaning of the word 'is' is":

When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008). Then, as now, the word “the” was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Language 2041 (1755) (defining “the” as an “article noting a particular thing”(emphasis added)). Unlike “a” or “an,” that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.”

Possessing only the dimmest memory that I'd written about the recess-appointment controversy before, I looked it up to remind myself of the details. Only then did I remember that ... oh dear ... I thought Obama's recess appointments were probably unconstitutional at the time. Reviewing my arguments, and the facts, I find myself persuaded all over again. (For a contrasting view, read my TNR colleague Jon Cohn's defense of the recess appointments.)

The Senate was not technically in recess. It was being kept by mischievous Republicans in a kind of self-induced coma over the Christmas holiday break, expressly to block Obama from making any recess appointments. So Obama basically said, "If it quacks like a recess, it's a recess, so here come my recess appointments." The problem with that approach is that there were comparable periods when the Senate was non-functional but clearly not in recess--say, weekends. Weekends quack like a recess too! Was Obama implicitly giving himself the power to make recess appointments 52 weeks a year? That didn't sound kosher to me. Most troubling of all, nobody seemed able to come up with any persuasive precedents.

I am not a lawyer, but Akhil Reed Amar is, and he shared some of my concerns. We ended up writing a piece together urging Obama to get 51 senators on record saying they didn't have any objection to the method of his recess appointments. It wasn't a perfect solution, but it seemed a reasonable one. Here's the nub of our argument:

First, it would serve to limit the precedent of presidential adventurism in the Cordray affair, by making clear that the President in this case was not really defying or circumventing the Senate, but actually facilitating the preferences of the Senate majority itself. Second, it would be an opportunity for Senators to accept responsibility by actually doing something rather than ducking responsibility by doing nothing at all—which the Senate of late has turned into an art form.

Third, it would be a measured move in the direction of filibuster reform—not across the board, not even in all cases involving appointments, but just in situations involving recess appointments. When Republicans controlled the Senate they loudly threatened to use “the nuclear” option—to destroy certain filibusters by a parliamentary maneouver that required only a simple majority vote of the Senate as a whole. Here, Senate Democrats would be doing the same thing, but on a smaller scale (involving only recess appointments). Such a move might be less likely, marginally, to enrage the other side. Call it a tactical nuke.

That last part makes painful reading in light of yesterday's blown opportunity to achieve filibuster reform. Anyway, the White House ignored us. I bet they're sorry now they did, because I seriously doubt the Supreme Court will throw them a lifesaver.